People v. Malveaux

• Decision Date: 19 November 1996
• Docket Number: B073853,Nos. B080323,s. B080323
• Citation: 50 Cal.App.4th 1425,59 Cal.Rptr.2d 371
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 8452, 96 Daily Journal D.A.R. 13,937 The PEOPLE, Plaintiff and Respondent, v. Craig MALVEAUX, Defendant and Appellant. In re CRAIG M., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. CRAIG M., Defendant and Appellant.

Page 371

59 Cal.Rptr.2d 371

50 Cal.App.4th 1425, 96 Cal. Daily Op. Serv. 8452,

96 Daily Journal D.A.R. 13,937

The PEOPLE, Plaintiff and Respondent, v. Craig MALVEAUX, Defendant and Appellant.

In re CRAIG M., A Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. CRAIG M., Defendant and Appellant.

Nos. B080323, B073853.

Court of Appeal, Second District, Division 7, California.

Nov. 19, 1996.

Certified for Partial Publication. ^*

[50 Cal.App.4th 1429] Bruce Daniel Rosen and Mary Holbrook, under appointments by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, and Robert R. Anderson, Senior Assistant Attorneys General, Kenneth C. Byrne and Robert Jibson, Supervising Deputy Attorneys General, Raymond L. Brosterhous and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

JOHNSON, Associate Justice.

This case dramatically illustrates how much can go wrong when a trial court takes actions which affect a cause while it is on appeal. As a result this court has been forced to consolidate two appeals from two trials, both involving the same defendant and both arising from the same crime, then order a reference to rehear an issue the trial court decided while the case was pending on appeal. One of the two appeals is from a decision of the Los Angeles County Superior Court, Juvenile Department after appellant had been tried in that court for this crime. The other is from a subsequent trial in adult criminal court for the identical crime. In between these two trials the juvenile court held a sui generis proceeding while its own judgment was on appeal. In that proceeding the judge vacated the juvenile court judgment even though it was on appeal, based on a finding appellant was over 18 when he committed the crime. The adult criminal court then proceeded to conduct its own trial of appellant for this crime, resulting in a conviction which also is on appeal in this court.

We concluded the juvenile court lacked jurisdiction to hold the sui generis proceeding to determine appellant's true age since at that time a notice of appeal already had been filed from the original juvenile adjudication. (We further concluded that even if the juvenile department had jurisdiction to conduct this hearing, it failed to afford appellant due process because it did not provide appellant with his right to counsel at this critical stage of the proceedings.) Consequently, we deemed the two appeals as a writ of error coram vobis and filed an unpublished opinion (People v. Malveaux (8/28/95) B080323) ¹ discussing the legal principles that apply in this situation and ordering a reference to the juvenile department to conduct a proper hearing on this issue. In that opinion, we held that if the referee determines and this court agrees appellant perpetrated a fraud on the court by concealing he was older than 18 at the time of the crime, it was not double jeopardy to try him again in adult court. We further concluded that if the referee indeed finds appellant committed such a fraud on the court it is unnecessary to have yet a second trial in adult criminal court and the conviction in that court can be upheld with a minor unrelated modification of sentence. On the other hand, if the findings are otherwise, the judgment in adult court must be reversed.

The referee has now reported after a hearing at which appellant enjoyed his constitutional right to counsel and this court agrees with its findings. Appellant did perpetrate a fraud on the court by deliberately misleading the juvenile court about his true status as an adult. Accordingly, we conclude the juvenile court judgment is properly vacated and the conviction in adult court for the same offense did not constitute double jeopardy. Accordingly, we affirm that conviction, after modifying the sentence because of an error unrelated to the earlier proceedings in juvenile court.

FACTS AND PROCEEDINGS BELOW

On July 28, 1992, at about midnight, appellant and several youths broke into the home of an elderly woman. The woman called 911 and told the ten-year-old girl who was staying with her to lock the bedroom door. The youths then kicked down the bedroom door and appellant, brandishing a handgun, ordered the occupants to lie on the floor. Appellant and others proceeded to remove personal property from the woman's home. Appellant fired his handgun within the home while he was leaving.

The police arrived, interrupted the robbery in progress and arrested some suspects at the scene. They found appellant at about 1:45 a.m. hiding in a nearby garage and took him into custody. Both the elderly woman On July 30, 1992, a juvenile petition was filed in the Los Angeles Superior Court. The petition alleged appellant, then identified as Craig M., was a minor who came within the provisions of Welfare and Institutions Code section 602. ² Count one of the petition alleged appellant committed robbery of an inhabited dwelling in violation of Penal Code section 211. Count one further alleged appellant had used a firearm within the meaning of Penal Code section 12022.5. Count two alleged appellant was in possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a).

and the ten-year-old girl identified appellant as one of the robbers.

On July 31, 1992, and August 3, 1992, appellant appeared with counsel at a detention hearing and denied the allegations. At this hearing, the court asked appellant his age and date of birth. Appellant replied he was 17 and born on November 9, 1974. His mother verified this date of birth.

On August 20, 1992, the juvenile court commenced a jurisdictional hearing. Appellant appeared with counsel at this hearing. There remained lingering doubts about appellant's age based on the probation officer's report and other testimony. Appellant remained adamant he was 17. The court instructed appellant's mother to provide a copy of his birth certificate, but she did not return to court or provide the certificate.

On August 21, 1992, the juvenile court sustained both counts of the petition. On September 3, 1992, the probation department submitted its report as required by section 706. On September 4, 1992, the court entered judgment committing Craig M. to the California Youth Authority for a 10-year period. The matter was continued to September 18th on the nonappearance calendar. Appellant filed a notice of appeal from the juvenile court's judgment on September 8, 1992.

At a hearing on September 18, 1992, the court, in the presence of appellant and counsel, referred to communications it had received from the probation officer and an official at juvenile hall indicating appellant's true age was 26. Appellant's attorney did not object to the content or introduction of this evidence. The matter was continued to September 25, 1992, for respondent to file "the appropriate motion." Despite the fact the juvenile department's judgment was on appeal, respondent did not file a petition for writ of error coram vobis in the Court of Appeal. Instead on September 25, 1992, respondent filed a "Motion to Stay Previous CYA Order and Declare Lack of Juvenile Court Jurisdiction" in the juvenile department of the superior court.

On September 28, 1992, appellant appeared in the juvenile department without counsel for a hearing on respondent's sui generis motion. The court failed to advise appellant of his right to have counsel present. Nor did appellant expressly waive the right nor did the court offer to provide counsel. The court merely asked appellant his name and he replied his real name is "James Malvo." The court asked appellant if his true name was "James Malvo" and he responded affirmatively. The court continued the matter one day so that Judge Scarlett, who had heard the jurisdictional and dispositional hearings, could preside over the hearing.

On September 29, 1992, appellant again appeared without counsel and was again not informed of his right to counsel. The juvenile court found appellant had committed fraud on the court in giving a false name and representing he was a minor. The court found appellant's true date of birth was November 11, 1966, and appellant was therefore an adult on the date of the commission of the offenses. The juvenile court stayed the California Youth Authority order and declared it lacked jurisdiction in the matter. The court then ordered appellant be prosecuted in adult criminal court under the general laws of the State of California.

On October 29, 1992, the prosecution filed an information in the adult Criminal Department of the Los Angeles Superior Court. This information charged appellant with Trial began on April 30, 1993. On May 14, 1993, the jury found appellant guilty of the robbery and burglary counts but acquitted him of the firearm possession count. The jury found the firearm use allegations untrue but the firearm-arming allegations true. Finally, the court found appellant had admitted the four prior prison term allegations.

three counts of first degree residential robbery, one count of first degree burglary and one count of being a felon in possession of a firearm. The information also included firearm use allegations as to the robbery and burglary counts and firearm-arming allegations, as well. A later amendment added allegations appellant had served four prior separate prison terms as defined in Penal Code section 667.5, subdivision (b).

On September 2, 1993, the trial court denied appellant's post-trial motions which included a motion to dismiss on grounds appellant had been twice placed in jeopardy since he already had been tried for the same criminal conduct in the juvenile department. The court imposed an aggregate term of 14 years, 4 months, which included an 8-month term for the firearm possession count of which appellant had been acquitted.

Appellant filed...